Ruminations on law and life

Arizona House passes consequential state bar bill.

How fitting that following an almost hour debate, the very last bill that passed out of the Arizona House at 5 o’clock last Thursday was historic legislation to protect the free speech rights of Arizona attorneys. HB 2221 passed 31-29. Among other provisions, the bill requires that mandatory dues collected by the State Bar of Arizona be used only for regulatory functions and not for nonregulatory activities like it does now. The bill now moves to the Senate.

Attorneys in Arizona must currently belong to a trade association and pay mandatory membership dues as preconditions to earning a living in their chosen profession. Arizona attorneys are the only Arizona professionals bound by such an expedient. What makes this problematic is that the State Bar uses compulsory member dues to not only regulate the practice of law — but to engage in other activities such as lobbying and advocating for ideological and political causes that not all members agree with.

The Bar says it “focuses on protecting the public by enhancing the profession, not politics.” In reality, the Bar has an odd way of showing it’s apolitical. Pay no attention, for example, to Bar executives and its lobbyist fighting legislation to eliminate the Bar’s inherent conflict of interest manifest in the claim to protect the public from lawyers while contemporaneously serving lawyer interests.

Last year despite the Bar’s steadfast ongoing opposition to voluntary bar legislation, Bar CEO John Phelps told the ABA’s Bar Leader Magazine, “If we can’t answer the questions about why a mandatory bar is a better model for folks in Arizona, then we ought not to be a required bar.”

The Bar’s resistance has everything to do with preserving a model that protects its bureaucratic self-regard. The loss of most of its mandatory dues monies would mean a sea change for its blithesome bureaucrats.

State Bar’s Free Speech.

Besides reaffirming state supreme court authority over lawyer regulation under the Arizona Constitution, HB 2221 also respects the State Bar’s free speech rights. It does not restrict the Bar’s ability to lobby or take political or ideological positions so long as those activities are voluntarily funded by attorneys. This provision is key because the bar is again distorting facts to serve naked self-interest.

Under Keller v. State Bar of California, 496 U.S. 1 (1990), the State Bar cannot compel attorneys to fund the Bar’s lobbying activities unrelated to regulating the practice of law. But nothing in Keller prevents the State Bar from collecting voluntary funds from attorneys to engage in any political activity that it wants. Just because the State Bar presently has a policy that it will not engage in political activities beyond those authorized in Keller, there is nothing to stop the Bar from changing that policy tomorrow. As a result, HB 2221 has no bearing on whether or not the State Bar will expand the array of political activities it chooses to engage in with voluntary funds.

Chutzpah redefined.

And in what can best be characterized as redefining that classic definition of Chutzpah, the Bar has begun audaciously arguing that a vote against HB 2221 would protect attorneys’ First Amendment rights! Why? Because Bar members are supposedly currently protected by U.S. Supreme Court precedent limiting the political speech of mandatory bar associations. The precedential case is Keller v. State Bar of California that held that mandatory membership bar associations can use members’ dues only for regulating the legal profession or improving the quality of legal services — not for political or ideological activities.

Turning the argument on its head, the State Bar is saying with a straight face that it’s now protecting free speech by lobbying against legislation that protects free speech. It’s a brazen rephrasing: “I was against free speech before I was for free speech.”

Were it truly interested in safeguarding the free speech rights of its members, the Bar would have by now taken affirmative steps and much more meaningful ones than its pious protestations of so-called ‘Keller-purity.’

Moreover, how does lobbying against voluntary bar legislation that has nothing to do with intruding on the Court’s lawyer regulation authority or with improving the quality of legal services satisfy the criteria under Keller? It doesn’t.

Instead, the Bar complies with Keller under the broadest of interpretations. Anything and everything goes so long as the activities encompass “core interests of the mandatory bar, interests of the legal profession, improve the administration of justice, or promote advancements in Arizona jurisprudence.” And oh, just in case, there’s the ‘catch-all’ — “any other activity authorized by law.” See “Criteria so expansive you could drive a dump truck through it.”

Assuming members ever find out about objectionable activities — and only after the fact — the Arizona Bar says members have “the option of challenging the Bar to ensure that any position taken is within the Keller guidelines.” This is a purgative past the point of needing it. What matter if a member objects to the Bar’s lobbying against legislation protecting attorney free speech if the objection occurs after the lobbying has killed the legislation? It’s a nickel-and-dime ‘remedy’ so not much of one.

No separation of powers problem.

The State Bar’s last-ditch efforts to block the bill in the House last week also centered on alleged separation of powers grounds. On the House Floor, Rep. Randall Friese, D-Tucson, a leading opponent argued that the Legislature was overstepping its bounds. He told a local newspaper, “I’m afraid this bill specifically directs the Supreme Court to do certain things. And I’m still concerned this body cannot.”

But this is incorrect as was pointed out in a well-crafted separation of powers legal memorandum that maintains “HB 2221 is consistent with the Legislature’s authority to protect constitutional rights and assure transparency in government, while respecting the Supreme Court’s role in attorney regulation.”

Friese is an Arizona physician. But unlike Arizona attorneys, he is not required to join a professional trade association to practice his profession. His only precondition to earn a living as a doctor is to pay the Arizona Medical Board $500 every two years for regulation and licensing.

Unfortunately, ‘what’s sauce for this goose is not sauce for that gander.’ In spite of the obvious intellectual inconsistency, the good doctor is not dissuaded. He’ll continue carrying water for the Bar against any legislation that puts lawyers on the same footing as his profession.

One Response

Rep. Farnsworth had a great rejoinder to Rep. Dr. Friese, who said he would welcome an involuntary trade association for doctors, too: (Paraphrasing) “Then you will be joining me as co-sponsor of a bill to make that happen next session.” Not so much. Friese said he’d have to “read it” first. Hahahahaha . . . Ugh.

It’s hard to believe that all Democrats read the legislation when they opposed it in a straight party line vote. I thought Democrats were my tribe for the first 50 years of my life. But not a single Democrat would listen to me. They did have the Bar talking points down, though, yammering away on the floor about fabulous nonexistent programs for the lawyers that the Bar spent a whole $50 funding in the 2013-14 biennium.

Dem after Dem repeated lies about the Bar that they were undoubtedly told by the lobbyist paid for by our Bar dues. That really is a violation of our First Amendment Rights — I cannot support lawyers who lie, not in court and not to the legislature. This is not a partisan bill, so the straight party line vote by the Democratic Party was disappointing and demoralizing. Especially helpful was the pro-Bar Dem who is nominally a lawyer but who seems to know nothing whatsoever about practicing law. The Arizona Bar wishes we were all so clueless.

And that is why I’m a registered Independent today. But Rep. Farnsworth was totally great as was Rep. Kern. They are smart, honest, and absolutely get how bad the Arizona State Bar truly is. Rep. Kern’s subcommittee hearings were the first time a lot of victims of this really awful state bar got to present their truth. A couple of women testified that fhey were sexually assaulted by the Bar’s former MAP Director, who spent 5 years in prison for being a bad, drug-dealing cop. The Bar has covered up multiple alleged crimes brought to their attention, including grant fraud. An in-house civil firm whitewash, paid for by your bar dues, is not the same thing as a criminal investigation not paid for buy your dues.

Rep. Kern’s bill deserved bipartisan support.

The win was good but it’s on to the next slog in the Senate. More is the same is going to happen. I was served with a insane bar complaint filed by a person I neither harmed nor represented, forwarded by the same people I’m testifying against 12 business days after the last time I testified. They told the Chief Justice that my testimony was almost a month earlier, I guess to make thenselves look less vindictive. It’s the first time in 22+ years I’ve ever had to answer a bar complaint like this: 200 pages doubled sided, half of it a rant that I’m a “Republican hater” when I won my clients’ cases and they’re happy. There are no specific allegations of misconduct, so I have to guess, explain why I was qualified to win the cases I won for my happy clients.

If that is not Bar Member abuse, I don’t know what is. Exercising your First Amendment rights is punished by the mandatory bar. It’s even worse than it sounds. My ethical record of 22+ years was completely spotless before this.